Judging the Judge

The confirmation hearings for John Roberts as Chief Justice of the United States offer a rare lesson in Constitutional law. At issue is the direction of American legal and political thought. Conservatives allied with the BushCheney administration want to see a Supreme Court that limits what they see as the expansion of rights beyond the original intent of the Constitution’s framers, intent they believe is clearly and unambiguously spelled out in the language of the Constitution. Liberals want a Court that will expand fundamental rights to reflect the changing nature of society. It is a debate as old as the American Republic, one that is never ending in a free society. At one point, Americans fought and killed each other over such issues. But mainly we fight in the courts.

During the Roberts’ hearings (and all other judicial nomination hearings as well), the discussion will be rarified, focusing on broad questions of philosophy and the role of the judiciary in the American body politic. But one issue will not be discussed, at least not openly: the political role of the judiciary and how it shapes the American polity. Most Americans regard the judiciary as non-political. But courts are political. The Court “follows the elections” is what I learned way back in political science school. Back then the most immediate example was the evolution of the Supreme Court from a body that rejected most New Deal legislation to one that supported legislation expanding government’s role in the economy and social welfare. Earlier, the Court endowed corporations with legal rights previously guaranteed only to individuals (1886) and asserted its own right of judicial review (1803).

Recent experience shows that the Court not only follows elections but decides them as well. The Court’s decision in Bush v. Gore gives a chilling example of the Court’s political role. The Court ignored law and precedent, even its oft-stated deference to states rights, to award the election to BushCheney. In choosing lifetime justices for the supreme court, America defines how law will be used in the society created by the social contract that is the United States Constitution. Therefore, a nominee’s judicial philosophy is a valid line of inquiry, one that determines what kind of society America will be.

Constitutional law in the United States has generally expanded fundamental rights to persons and groups previously excluded from those protections. From a document that allowed slavery, restricted voting to white males and countenanced unequal representation in state and local legislatures, the Constitution has through amendment and interpretation extended protections to previously excluded or unrecognized members of society. In doing so, the United States has broadened its definition of democracy and fundamental freedoms. The process has been uneven and contentious at times, but the trend has been consistent. And it has always been a matter of choice–politics–made by elected representatives and appointed judges.

That is why questioning a nominee who will serve in a lifetime appointment is critical. Understanding a nominee’s philosophy and how he or she approaches legal issues allows the Senate to make an informed choice about the individual who will affect the course of this nation for decades. This is clearly a political choice. BushCheney claims that he wants judges who are not “activists,” judges who will not “legislate from the bench” even as his Justices Scalia and Thomas, BushCheney’s “ideal justices” do just that in selectively apply their concept of Original Intent to overturn acts of Congress. in the name of Original Intent. What BushCheney seeks are justices that legislate in a manner consistent with his beliefs. Senators, charged with the responsibility to advise and consent to judicial nominations likewise do the same. Few actions are as political as choosing a Supreme Court justice.

So politics figures prominently in selecting a judicial nominee and the subsequent confirmation process. BushCheney occupy the presidency and his Republican minions control the Senate so he largely controls the nominating process. John Roberts is a choice that reflects their politics and, unless the hearings produce some surprising information, he will be confirmed. But Republicans have no mandate for their radical philosophies that threaten fundamental liberties (Patriot Act, broad unchecked executive power, intrusions against privacy). In this divisive environment, Democrats also have a role to play by questioning Roberts about his judicial philosophy and approach to the judicial process.

From everything I’ve read John Roberts is intelligent and has extensive experience as a lawyer before the Supreme Court. He is a savvy choice, a man who has reasonable credentials to serve as Chief Justice. But Roberts has also expressed disagreement with the right to privacy established in Griswold v Connecticuit, believes that gender discrimination is not an issue for public policy, has taken a restrictive view of civil rights protection and questions the basis for much of the New Deal and subsequent policy. His history is clearly that of a Federalist Society Republican who, like the Chief Justice he seeks to replace, wants to limit federal authority to meet the responsibilities established inthe Constitution. He may not be Grover Norquist but his record is uncomfortably close.

If BushCheney and his lapdog Senate want to saddle America with this kind of Supreme Court Justice, then the Democrats have a duty to expose the intent and consequences of this nomination.